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Anatomy of a Brief

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  1. Freedom of Information
In late June, the Reporters Committee filed a friend-of-the-court brief in an intermediate appellate court in New York addressing the…

In late June, the Reporters Committee filed a friend-of-the-court brief in an intermediate appellate court in New York addressing the difficult balancing of public interests and personal privacy in freedom of information cases.

Public interest vs. privacy

Most freedom of information laws in this country have some form of exemption that protects from release information that is acutely personal (Social Security numbers, for example, or the contents of an individual’s medical file). These privacy exemptions, though, are not absolute. There are times when the public interest in a piece of information is so high (or the personal privacy interest is so low) that the government will have to release that information.

In New York, the Freedom of Information Law includes a pretty standard privacy exemption that specifically protects six categories of information and imposes a balancing test on other information. Information is only exempt under the privacy clause in FOIL if its release would cause an “unwarranted invasion of personal privacy.” The question, of course, then becomes, “Which invasions of privacy are unwarranted?” The answer is based on how much the public will benefit from having the information and how important the individual’s privacy concerns in the information are.

Berger v. New York City Department of Health and Mental Hygiene involved just such a balancing test.

The facts of the case

Segments of the Orthodox Jewish community in New York perform a type of circumcision ritual that carries a high risk of transmission of herpes to the infant. Because herpes can be deadly or cause serious brain damage in infants, the New York City Department of Health and Mental Hygiene requires anyone performing this type of circumcision to get the informed consent of the boy’s parents. Mohels, the ritual circumcisers, have been openly defying that requirement, and there have been several infant deaths tied to this practice.

Paul Berger, a reporter at the Jewish Daily Forward, requested from the Health Department the name of the mohel tied to a particular case of infant herpes. Although the department had released a mohel’s name several years earlier (and, in fact, had banned the man from continuing to perform these types of circumcisions), the department denied Berger’s FOIL request, citing the mohel’s personal privacy rights.

The trial court (which in New York is called the Supreme Court) agreed with the Health Department that the public interest did not outweigh the privacy interests at stake for several reasons. First, the judge was concerned that releasing the mohel’s name would discourage people from reporting cases of infant herpes in the future. Additionally, the judge found that it would do the public no good to know the mohel’s name.

The law on privacy vs. public interest

FOIL exempts from disclosure any information that, if released, would amount to an “unwarranted invasion of personal privacy.”

New York enacted its FOIL to facilitate public access to government information. “FOIL is based on a presumption of access to [government] records, and an agency . . . carries the burden of demonstrating that the exemption applies to the FOIL request.” Matter of Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 462, 849 N.Y.S.2d 489, 880 N.E.2d 10 (N.Y. Ct. App. 2007) (internal citations omitted). Importantly, exemptions to FOIL are to be narrowly construed. Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 566, 505 N.Y.S.2d 576, 496 N.E.2d 665 (N.Y. Ct. App. 1986).

. . .

FOIL exempts from public disclosure information that, “if disclosed would constitute an unwarranted invasion of personal privacy.” Public Officers Law § 87(2)(b). The law goes on to partially define an “unwarranted invasion of personal privacy” by laying out six categories of information that would qualify [ . . . ] That list is not comprehensive, however, and where none of the six enumerated examples apply, a court “must decide whether any invasion of privacy [ . . . ] is ‘unwarranted’ by balancing the privacy interests at stake against the public interest in disclosure of the information.” Matter of New York Times Co. v. City of N.Y. Fire Dept., 4 N.Y.3d 477, 485 (N.Y. Ct. App. 2005).

When it comes to applying the public interest/privacy balancing test, courts look to what stake the public has in knowing the information and how the information will contribute to public understanding of an important issue.

In general, there is a strong public interest in enforcing all valid laws and codes. See, e.g., Sheinberg v. Fluor Corp., 514 F.Supp. 133 (S.D.N.Y. 1981) (discussing the public interest in compliance with the federal security laws); Sierra Club v. Alexander, 484 F.Supp. 455 (N.D.N.Y. 1980) (discussing the public interest in compliance with the National Environmental Policy Act); and Verizon New York, Inc. v. Optical Commc’ns Grp., Inc., 91 A.D.3d 176, 936 N.Y.S.2d 86 (App. Div. 1st Dept. 2011) (acknowledging the public’s interest in compliance with statutory and regulatory schemes). It is in the best interest of all members of the public if everyone complies with valid statutes.

. . .

Distinct from any general interest in ensuring laws are enforced, the public also has a well-recognized interest in “protecting children from injury or mistreatment and in safeguarding their physical, mental and emotional well-being.” In re Stephen F., 118 Misc.2d 655, 657, 460 N.Y.S.2d 856, 858 (N.Y. Fam. Ct. 1982). See also In re Maximom, 186 Misc.2d 266, 710 N.Y.S.2d 864 (N.Y. Fam. Ct. 2000); American Libraries Ass’n v. Pataki, 969 F.Supp. 160 (S.D.N.Y. 1997).

Analysis of the case

The Reporters Committee argued in its brief that the mohel’s privacy interests here were outweighed by the public interest in having complete information about this issue.

The Supreme Court failed to acknowledge the high public interest in both ensuring compliance with duly enacted regulations and protecting the health and welfare of children. Both interests are critical to society’s functioning, and both are implicated in this case.

Additionally, privacy rights are not absolute, and there are different degrees of privacy rights when dealing with private activity verses professional activities. Because the mohel in this case was acting in his professional capacity when he allegedly infected the infant with herpes simplex virus, he has reduced privacy rights in the information related to how he performed his job.

It was also important that the records the reporter sought here were not medical treatment records, which are exempt under FOIL.

[D]isclosure of “medical histories” would involve disclosing “ongoing treatment for [ . . . ] medical conditions.” Id. No such treatment is involved here, and the disclosure of the mohel’s name would not make a record of such treatment public [ . . . ] The mohel’s name is not a client or patient record in this case, because the mohel was not a client or patient of the Health Department.

. . .

While the release of someone’s health status, especially their status as it relates to a sexually transmitted disease, may in may circumstances be “offensive and objectionable” to a reasonable person, these are no ordinary circumstances. In these cases, adults are knowingly putting infants at risk for death or serious injury, and are openly violating New York City law in the process of doing so. Releasing relevant information about this public health hazard is not likely to offend a reasonable person.

The Reporters Committee brief also emphasized that given the mohels’ open disregard for the Health Department’s informed consent rules, and the risk to the public of spreading communicable diseases, the public interest should win out in this case.

The lower court held that “the disclosure of the names of the reported persons would likely subject the named individuals . . . to possible sanctions for violations of the NYC Health Code if they infected others.” Berger, R-015. It is unclear why the Supreme Court believed that the possibility that an individual who has violated a duly enacted law should be protected under a privacy exemption because he may face sanctions for violating the law [ . . . ] The Supreme Court’s conclusion that privacy interests protect an individual from sanctions or prosecution for violating valid laws has no foundation.

. . .

[T]he Supreme Court specifically found that the Forward had failed to show a “further or particularized public interest” in obtaining the mohel’s name, rather than a redacted copy of the Health Department record. Berger, R-015. By acknowledging that there may be further ramifications for the mohel if his identity were released, the lower court identified just such a “further or particularized” interest. The public has an interest in the fact that this infection was spread, certainly, but New Yorkers also have a “further” interest in knowing who is spreading this infection to infants and in ensuring that person is appropriately sanctioned for violating 24 RCNY § 181.21.

Why the public should be able to access this record

Berger and the Forward are trying to educate and warn their readers about a real threat to infants in New York City. There is no substitute in that effort for having the mohel’s name. Because his privacy rights are diminished when he acts in his professional capacity, and because the public has a strong interest in universal enforcement of laws and the protection of children, journalists should be able to access the mohel’s name to compile an accurate and complete report of the situation.